UDHAN LOHAR Vs. EMPEROR

JUDGEMENT

(1.) Udhan Lohar, resident of village Salempur, District Farrukbabad, appeals from his conviction and sentence under Section 302, I.P.C., for having caused the death of Thakur Banwari Singh on the night between 31 May and 1 June 1938 at village Tera. There is also a reference before us by the learned Sessions Judge for the confirmation of the death sentence imposed on the appellant. The prosecution story is that Banwari Singh deceased was sleeping outside his house when he was set upon by the appellant Udhan and two other persons named Bhawani and Pooran and was done to death by spear wounds and lathi blows. The wife of the deceased and his aunt were sleeping in side the house and his son Rameshur was sleeping outside at some distance. They heard the noise and coming to the place whore the deceased was sleeping they found that Banwari Singh was dead and a sheet covered his body. A report of the occurrence was made at the instance of the relatives of the deceased by the village Chaukidar named Misri at 6 A.M. The Thana is at a distance of 2 1/2 miles from village Tera. In the report no name of the accused person was mentioned. It was stated that Misri was asked by the son of the deceased and his widow to make the report and on being asked as to the details of the occurrence they said that they would make a statement when some responsible person would visit the place. After investigation the three persons named above were put on their trial. The learned Sessions Judge found insufficient evidence against Pooran and Bhawani and accordingly acquitted them. In the opinion of the learned Sessions Judge the charge against the appellant was fully established by circumstantial evidence and the confession of the appellant. He accordingly convicted and sentenced the appellant as stated above. The motive for the crime is said to be enmity between the deceased and the appellant.

(2.) It appears that Udhan originally belonged to village Salempur but after the death of his father, when he was only about 12 years old, he came to village Tera to reside with his uncle Roshan. On attaining majority, Udhan built a house for himself and began to live in it separate from his uncle Roshan. Some time before the occurrence, it is alleged that Udhan contracted illicit connexion with the wife of one Shamle. Later, it is said that Banwari Singh, deceased, ousted Udhan from the favour of the woman and succeeded in preventing Udhan from visiting the house of Shamle. This is said to have enraged Udhan against Banwari Singh. It is also stated that Roshan had arranged the marriage of Udhan in village Mahsulapur but Udhan refused to marry there because Shamle's wife had arranged a marriage for him with her own niece, that is, the daughter of Shibu. It is suggested that Udhan was anxious to marry this girl because through this marriage he would succeed in regaining the favour of Shamle's wife and eventually supersede Banwari Singh. Evidence has been led to prove that Banwari Singh brought pressure upon Shibu to refuse to marry his daughter to Udhan. This further strained the feelings between the deceased and Udhan. It is not necessary for us to consider the evidence led by the prosecution to prove the motive for the crimes, because, in our opinion, the evidence implicating the accused with the commission of the offence is wholly inadequate.

(3.) It is conceded that there is no direct evidence of this murder. Some attempt was made to prove that all the accused persons were seen running away from the house of Banwari Singh after the commission of the offence. But the learned Sessions Judge has disbelieved the statement of P.W. Makka who was produced to prove this fact. We are in entire agreement with the learned Sessions Judge that Makka is not a reliable witness and no weight can be attached to Ion testimony. The only evidence relied upon is the alleged statement of Udhan to the Sub- Inspector Habib Hasan which led to the discovery of a spearhead and a lathi. Sub- Inspector, Habib Hasan, P.W. 19, states that Udhan told him that he killed (Bunwari Singh) with a spear and then broke the spear and threw the spearhead in the well and the lathi in the talab. After this statement, the Sub-Inspector was taken by Udhan to the talab and there ho brought out the lathi from under the mud in the talab and then he took the Sub-Inspector to the well and told him that the spearhead was thrown in that well. The Sub-Inspector deputed one Mindai Kahar to dive into the well and search for the spearhead. Mindai Kahar brought out the spearhead. The spearhead was sent to the Chemical Examiner who noted that the suggestion of the police that the spear head was stained with blood was not confirmed. From the report of the Imperial Serologist, it appears that the stains disintegrated and their origin could not be determined. Several witnesses have been produced to prove that the accused Udhan did make the statement attributed to him which led to the discovery of the spearhead with which the deceased Banwari Singh is said to have been injured which resulted in the latter's death. Learned Counsel for the appellant contends that in the first place the alleged statement of Udhan is not admissible in evidence and secondly even if it is admissible it is wholly Insufficient to base the conviction upon.